Bombay High Court
The Secretary Maharashtra Public ... vs Mahesh Arjun Kute And Anr on 16 March, 2022
Bench: Makarand Subhash Karnik
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Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5530 OF 2021
The Secretary,
Maharashtra Public Service
Commission .. Petitioner
Vs.
Mahesh Arjun Kute & Anr. .. Respondents
Ms. Manisha Jagtap i/by J. Shekhar & Co. for petitioner.
Mr. Dinesh B. Khaire a/w Ms. Purva Pradhan and Mr. Abhijeet
Pawar for respondent no.1.
Mrs. R. A. Salunkhe, AGP for respondent no.2-State.
C0RAM: DIPANKAR DATTA, CJ &
M. S. KARNIK, J.
DATE: MARCH 16, 2022
PC:
1. The Secretary, Maharashtra Public Service Commission
(hereafter "the Commission", for short) has impugned in this
writ petition the judgment and order dated July 20, 2021 of
the Maharashtra Administrative Tribunal, Mumbai (hereafter
"the Tribunal", for short) while allowing Original Application
No. 294 of 2020, instituted by the respondent no.1.
2. The operative part of the order of the Tribunal reads
thus:
"12. In view of the above we pass the following order: -
(a) The Home Department should send requisition to
M.P.S.C. within a period of three weeks.
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(b) M.P.S.C. should recommend the names of the
candidates from the waiting list from OBC Sports
category and if as per merits, the applicant is
eligible, his name should also be considered, within
a period of three weeks thereafter.
(c) The entire process should be completed within a
period of 45 days from the date of this order."
3. Before examining the validity of the impugned judgment
and order it would be appropriate to notice the relevant facts
giving rise to the original application before the Tribunal, out
of which this writ petition arises.
4. The Commission had issued an advertisement on May
13, 2018 inviting applications from eligible candidates for
appointment on vacant posts of Police Sub Inspector in the
Maharashtra Police Force. It is not in dispute that the
respondent no.1 belongs to the OBC category and is also a
sportsman and that he was eligible to be considered in the
category of OBC-Sports quota. Incidentally, 4 (four) vacancies
were earmarked for such quota. The respondent no.1, having
obtained 162 marks, did figure in the merit-list published by
the Commission on March 17, 2020 for filling up such quota
but was unfortunately at the 5th position. Thus, effectively, he
was the first wait-listed candidate.
5. Even before publication of such merit list on March 17,
2020, Mr. Anil N. Sawale, a candidate who had obtained 182
marks and figured in the merit-list, intimated to the
Commission as well as the respondent no.2, the Director
General of Police, Maharashtra, that he had secured
appointment as Police Sub Inspector pursuant to a prior
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process of selection and that he was no longer interested in
continuing with his candidature pursuant to the advertisement
dated May 13, 2018. He requested that his candidature may
be allowed to be withdrawn. The Commission received such
intimation from Mr. Sawale on February 24, 2020, yet,
proceeded to include him in the merit-list. Mr. Sawale's
intimation was not given any consideration by the
Commission, allegedly, on the strength of instructions issued
by it to the participating candidates that in course of selection
process, no inquiry/correspondence from any candidate would
be entertained regarding the result of any examination.
6. Notably, despite publication of the merit-list on March
17, 2020, the Commission communicated its recommendation
on July 14, 2020, i.e., nearly 4 (four) months later. Obviously,
this delay could be attributed to the national lockdown
announced from March 24, 2020. Also, due to the pandemic
arising out of Covid-19, the candidates who figured in the
merit-list prepared by the Commission on March 17, 2020
were allowed to join the training programme more than a year
later, June 24, 2021 to be precise. Immediately thereafter, the
Director General of Police sent a requisition to the Home
Department requesting for calling of further names from the
Commission because of non-joining of candidates who figured
in the merit-list. The Commission refused to recommend the
name of the respondent no.1 and other wait-listed candidates
on the ground that the Home Department's requisition had
reached it beyond a year of publication of the merit-list. Since
the respondent no.1 found that his name had not been
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recommended by the Commission despite request of the
Home Department, he instituted the original application
before the Tribunal whereon the judgment and order under
challenge was rendered.
7. Bare reading of the impugned judgment and order
reveals the Tribunal forming an opinion that the delay on the
part of the Home Department should not be a reason for a
deserving candidate belonging to sports category and
particularly from the OBC category to be denied an
appointment. Since it was the policy of the Government to
encourage deserving candidates belonging to the reserved
category, to which the respondent no.1 belongs, it would be
just and proper if he were not made to suffer for the delay of
the Home Department in communicating its request to the
Commission within 30 days.
8. We have heard Ms. Jagtap, learned advocate appearing
for the petitioner/Commission and Mr. Khaire, learned
advocate appearing for the respondent no.1.
9. It is not in dispute that prior to publication of the merit-
list on March 17, 2020, Mr. Sawale had withdrawn his
candidature. If indeed his candidature had been cancelled by
the Commission at the first instance, the respondent no.1
being the next in the merit-list/first waitlisted candidate would
have figured within the first four candidates in such merit-list.
That the Commission follows a particular procedure of not
entertaining inquiry/correspondence in the course of selection
process may not per se be unjustified; however, such
instructions are confined to inquiry/correspondence about the
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result of any examination. The same cannot be read in a
manner so as to deny the rightful claim of a candidate who
could have been recommended for appointment, if only the
Commission had exercised due diligence at its end. This would
have been possible if the Commission had initiated efforts to
verify from the office of the Director General of Police the
authenticity of the request made by Mr. Sawale.
10. Be that as it may, since the Commission itself took more
than 4 (four) months to communicate its recommendation to
the Home Department because of the national lock down that
was enforced on and from March 24, 2020, there is no reason
as to why belated sending of requisition by the Home
Department, because of the same reason, should be faulted
and a recommendation denied to the respondent no.1 despite
his position as noted above.
11. Keeping in view the above facts and circumstances, two
views are indeed possible and the view taken by the Tribunal
does not appear to us to be an absurd view or grossly wrong
on the face of any statutory rules by which the Commission
feels itself to be bound. The respondent no.1 is a reserved
category candidate and in terms of our constitutional scheme,
reserved category candidates are entitled to preferential
treatment. Here, the respondent no.1 is not seeking any such
treatment. He claimed enforcement of his right based on his
position in the merit-list. As such, appointment ought not to
be denied when the respondent no.1 is not at fault. Law is
well settled that it is not for the writ court to substitute its
view for the view taken by the Tribunal, particularly when it is
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a plausible view. Therefore, substituting the view taken by the
Tribunal in the given facts and circumstances would not at all
be justified.
12. We, therefore, dismiss the writ petition. No costs.
13. It is made clear that this order would be confined only to
the respondent no.1 who had approached the Tribunal within
time and not to any other wait-listed candidate.
14. The Commission is directed to forward the name of the
respondent no.1 to the Home Department as well as the
Director General of Police within a month from date,
whereafter the respondent no.1 may be offered appointment
and allowed to join the training programme by a month
thereafter.
(M. S. KARNIK, J.) (CHIEF JUSTICE)
PRAVIN
DASHARATH
PANDIT
Digitally signed by
PRAVIN DASHARATH
PANDIT
Date: 2022.03.17
15:39:34 +0530
